Patna High Court
Sheo Shankar Kumar Khetan vs Name Not Known, Widow Of Late Ambika ... on 5 September, 2007
Equivalent citations: 2007(2)BLJR2936
JUDGMENT S.N. Hussain, J.
Page 2937
1. This First Appeal has been filed by defendant No. 2 of Title Suit No. 18 of 1988 against the judgment and decree dated 10.06.1991, by which the learned Subordinate Judge-I, Jehanabad, decreed the suit.
2. The aforesaid Title Suit No. 18 of 1988 was filed by respondents No. 1 and 2 for the following reliefs:
(A) It be adjudicated and declared that the impugned sale deeds dated 29.01.1988 and 30.01.1988 referred in the plaint are illegal, fraudulent, brought into existence under threat, coercion and undue influence and defendants No. 1 and 2 have acquired no title through the same and the same not being binding on the plaintiffs may be set aside.
(B) Defendants be permanently restrained from disturbing the possession of the plaintiffs over the suit property and be restrained further from withdrawing the original sale deeds from the Registration Office to avoid multiplicity of litigation and future complication.
(C) Cost of the suit.
(D) Any other relief or reliefs.
By subsequent amendment petition dated 18th of September, 1989, following two reliefs were added:
(A2) The order passed by D.M.-cum-District Registrar, Jehanabad, be held to be illegal.
(A3) The original sale deed executed by defendant Nos. 3 and 4 in favour of the plaintiffs on 18.01.1988 be called for from the office of the District Sub-Registrar, Jehanabad and the D.M.-cum-District Registrar, Jehanabad, which is the subject matter of the main issue as its copy is not supplied.
By another amendment petition dated 7th of December, 1990, following declaration was also sought for in Relief (A):
And Bai Beyana deed dated 28.10.1986 is antedated.
3. The case of the plaintiffs was as follows: The suit property originally belonged to the father of defendant No. 4, who executed a deed of gift dated 09.11.1956 in favour of his grandson (defendant No. 3), but since the said transferee was a Page 2938 minor at that time his mother (defendant No. 4) was his guardian; Subsequently, defendant No. 3 attained majority and in January, 1988 defendants No. 3 and 4 negotiated with the plaintiffs to sell the suit property, which was agreed between the parties and consideration money was fixed at Rs. 49,000/-; For the said purpose, stamp papers were purchased on 12.01.1988, upon which the deed of sale was prepared and was executed on 18.01.1988 by defendant No. 3 and 4 in favour of plaintiffs and finally on 28.01.1988, the said sale-deed was presented before the Registrar for its registration; In the said sale-deed, it was stated that out of the said consideration amount, Rs. 30,000/- was paid to the vendor but the balance of Rs. 19,000/- was to be paid at the time of exchange of equivalents.
4. The plaintiffs further claimed that on the same day defendant No. 3 was kidnapped from the Registry Office and hence sale-deed could not be registered, whereafter defendant No. 4 informed the Sub-Divisional Magistrate about the kidnapping, who forwarded the matter to the Police, which instituted a case but subsequently final form was submitted by the Police. The plaintiffs also claimed that on 29.01.1988, they filed a petition before the Sub-Registrar under Section 36 of the Registration Act, 1908 for compulsory registration of the deed, whereafter, notices were sent to defendants No. 3 and 4, none of whom appeared and the said petition was rejected, whereupon the plaintiffs filed Appeal No. 49 of 1988-89 before the Registrar, in which defendant No. 3 appeared and filed his written statement and subsequently the said appeal was dismissed by the Registrar on 07.08.1989 on the ground that during the pendency of the aforesaid case before the Sub-Registrar, the plaintiffs had filed the instant Title Suit No. 18 of 1988 on 20.02.1988 for the original reliefs claimed in the case. However, after dismissal of their appeal by the District Registrar by order dated 07.08.1989, the plaintiffs sought for amendment of the plaint by adding two more reliefs vide their petition dated 18.09.1989, which are detailed above in paragraph No. 2 of this judgment.
5. Defendants No. 1 and 2 filed their joint written statement in the suit claiming that defendant No. 3 was the exclusive owner of the suit properties and he executed an agreement for sale dated 28.10.1986 with respect to the suit properties in favour of defendants No. 1 and 2, in which consideration amount was fixed at Rs. 80,000/-, out of which Rs. 50,000/- was paid as an advance by the said defendants and the remaining amount of Rs. 30,000/- was to be paid at the time of the execution/registration of the sale deed. It was also claimed by defendants No. 1 and 2 that defendant No. 3 became complacent and evaded execution of sale-deeds on one pretext or the other but when defendants No. 1 and 2 told him that they would bring the matter in court, defendant No. 3 accepted the remaining consideration amount and executed six sale-deeds on 29.01.1988 and 30.01.1988 in favour of defendants No. 1 and 2, which were registered on commission as defendant No. 3 was ill and put the vendees in possession over the purchased premises. It was also claimed by defendant No. 2 that the plaintiffs had full knowledge of the said agreement of sale dated 28.10.1986 and was also aware that talks for execution of the sale-deed were going on between defendant No. 3 and defendants No. 1 and 2, but the plaintiffs played fraud, coercion, undue influence and threat and got the sale-deed executed in their favour by defendant No. 3 on 18.01.1988 bringing defendant No. 4 in collusion although she had no manner of claim or title over the suit property.
Page 2939
6. Defendant No. 1 and 2 also averred that criminal case for kidnapping filed by defendant No. 4 was absolutely false and frivolous as defendant No. 3 after appearing in the case gave statement that he was never kidnapped, as a result whereof final form was submitted by the Police. It was also claimed by defendants No. 1 and 2 that in the facts and circumstances of the case the sale-deeds executed and registered on 29.01.1988 and 30.01.1988 in favour of defendants No. 1 and 2 were legal, valid and proper, whereas, the sale-deeds executed on 18.01.1988 in favour of the plaintiffs were absolutely illegal, arbitrary and perverse and the learned Sub-Registrar rightly refused to register the same and the Registrar rightly dismissed the appeal filed by the plaintiffs. The said defendants No. 1 and 2 also claimed possession of the plaintiffs over the suit premises merely as tenants and since defendants No. 1 and 2 have acquired title over the same, they have the right as owners to evict the plaintiffs from the suit premises. Thus, they claimed that the plaintiffs had no manner of any right or claim and the suit was fit to be dismissed.
7. Defendant No. 3 Vijay Kumar Sarraf, who was the original owner of the suit property as admitted both by the plaintiffs and defendants No. 1 and 2, filed his written statement dated 09.03.1988 falsifying the claim of the plaintiffs, but subsequently on 11.09.1990 he filed another written statement stating that he had never entered into any agreement for sale of the suit lands with defendants No. 1 and 2 nor he ever executed any sale-deed in their favour, but after execution of the sale-deed dated 18.01.1988 in favour of the plaintiffs, he was kidnapped by defendants No. 1 and 2 and was kept at a secret place and without payment of any consideration amount, his signatures were taken on a large number of stamp papers as well as on other papers under threat, coercion and undue influence by defendants No. 1 and 2 and their criminal associates. He further stated that he was a weak person and did not have courage to resist the said acts of defendants No. 1 and 2 and their criminal associates, who terrorised defendant No. 3 to make false statement in the criminal case and before the Commissioner, who was appointed for getting sale-deeds dated 29.01.1988 and 30.01.1988 registered.
8. Defendant No. 3 also claimed that the earlier written statement filed on his behalf on 09.03.1988 was prepared by defendants No. 1 and 2 and their men and the affidavit of the said written statement was not sworn wilfully by him and the Vakalatnama and the written statement were not executed wilfully by him, rather he was forced, threatened and coerced to execute them. Defendant No. 3 also stated that he and his mother (defendant No. 4) executed the sale-deed in favour of the plaintiffs on 18.01.1988 according to their own free will and he is prepared to execute a fresh sale-deed if necessary in favour of the plaintiffs and to accept the balance consideration money from them. Finally he claimed that the suit of the plaintiffs was bona fide, true and correct and was fit to be decreed.
9. Defendant No. 4 also filed her written statement on 11.09.1990 supporting the averments made by her son (defendant No. 3) in his written statement dated 11.09.1990 and also fully supported the plaintiffs' claim and requested the suit to be decreed.
10. Considering the facts and circumstances of the case as well as the pleadings and claims of the respective parties, the learned trial court settled the following issues for determination in the title suit:
Page 2940 I. Is the suit as framed maintainable?
II. Have the plaintiffs valid cause of action for the suit?
III. Whether the deed of Baibeyana and sale-deeds of defendant Nos. 1 and 2 executed by defendant No. 3 is valid, genuine and for consideration or those are brought in existence under coercion and threat to defendant No. 3 and without consideration and ante-dated with knowledge of the sale-deed of the plaintiff?
IV. Whether the sale-deed of the plaintiff is valid, genuine and for consideration and with nowledge of the deed of Baibeyana of defendant?
V. Whether the order of the District Registrar is illegal?
VI. Whether the defendant is liable to admit the execution of the sale-deed of the plaintiff?
VII. Whether the plaintiff is entitled to a decree for Specific Performance of Contract?
VIII. Is the suit barred by Limitation?
IX. To what relief or reliefs are the plaintiffs entitled?
11. During the hearing of the suit, the plaintiffs adduced 20 witnesses, out of whom P.W.17 was plaintiff No. 2 himself, who supported the pleadings in the plaint, whereas, P.Ws. 6, 10, 11, 15, 18, 19 and 20 were formal witnesses. Several witnesses of the plaintiffs proved execution of the sale-deed dated 18.01.1988 (Ext.1) by defendants No. 3 and 4 in favour of the plaintiffs, receipt of Rs. 30,000/- out of the total consideration money of Rs. 49,000/- by defendants No. 3 and 4 from the plaintiffs and also the presentation of the said sale-deed for registration in the Registration Office on 28.01.1988 (Ext.4), out of whom P.W.1 was an Advocate's Clerk, P.W.2 was a Post Office Agent, P.W.3 was the writer of the deed, P.Ws. 4, 5 and 8 were witnesses of the said deed, who were all Advocates, one of whom P.W.8 was working as a Judicial Magistrate at the time of deposition, whereas P.W.9 was a neighbour. Apart from the aforesaid persons, who proved the signature of the executant of the said deed, P.Ws. 14 and 16 also proved the signature of defendant No. 3 Vijay Kumar Sarraf on the sale deed, out of them P.W.14 was a photographer, who photographed the said signature along with the admitted signature of Vijay Kumar Sarraf and enlarged the same (Exts.2 series and 3 series), whereas, P.W.16 was a Handwriting and Finger Print Expert, who tallied the signature of Vijay Kumar Sarraf on the sale deed with admitted signature and found that they were of the same person. Apart from that P.W.12, who was a tenant in the suit house, as well as P.W.13, who was a neighbour, proved that the contesting defendants were never in possession of the suit premises, whereas P.W. 3 stated that defendant neither owned any house nor was a tenant of any house in Mohalla Horilgnj. P.W.2, who was a Post Office Agent, also proved that he was a witness of kidnapping of Vijay Kumar Sarraf (D.W.3) and of lodging of a case by his mother (defendant No. 4) before the Sub-Divisional Magistrate.
12. Plaintiffs produced several documents, which were taken into evidence as exhibits, out of them Ext.1 is an unregistered sale-deed executed by defendants No. 3 and 4 in favour of the plaintiffs dated 18.01.1988, whereas, Exts.2 series and Exts.3 series are negatives and enlarged photographs of the signatures of defendant No. 3 on various documents; Ext.4 is the photo copy of Register of the Page 2941 Registration Office with respect to presentation of sale-deed dated 18.01.1988 before the Sub-Registrar for registration on 28.01.1988; Ext.'5' is the report of Handwriting Expert dated 05.01.1991, submitted in the trial court; Ext.6 is the written statement of defendant No. 3; Ext.7 is the signature of defendant No. 3 on the affidavit of written statement; Ext.8 is the signature of defendant No. 3 on Written Statement; Ext. 9 is the order of the Collector, Jehanabad, dated 02.08.1989; Ext.11 is the Vakalatnama of Defendant No. 4 Sarla Devi; Ext.12 is the final form submitted by the Police in G.R. No. 87 of 1988 and Ext.13 is the protest petition filed in the said case.
13. On the other hand, twentythree witnesses deposed on behalf of defendants No. 1 and 2, out of whom defendant No. 2 deposed as D.W.15 supporting the pleadings in the written statement, whereas, D.Ws. 1, 6, 7, 8, 9, 10, 11, 12, 17, 19, 20, 21, 22 and 23 were formal witnesses. D.W.2 is the deedwriter; D.W.4 is a witness, who proved the deed of agreement dated 28.10.1986 (Ext.A) between defendants No. 1 and 2 and defendant No. 3 and payment of Rs. 50,000/- out of Rs. 80,000/- by defendants No. 1 and 2 to defendant No. 3; whereas, D.W.14, who is the tutor of children of defendant No. 2, deposed that there was a talk of sale between defendants No. 1 & 2 and defendant No. 3 on 05.11.1985, but that was not a final talk. Execution of six sale-deeds dated 21.01.1988 (Exts.B series) by defendant No. 3 and payment of the remaining consideration amount of Rs. 30,000/- by defendants No. 1 and 2 to defendant No. 3 were supported by D.Ws.3, 5 and 13, out of whom D.W.3 was a Thikedar and was also a witness to the deed along with D.W.5, whereas, D.W.13 was a deedwriter. D.W.5, a witness of the said deed, also stated that after 8-9 days of their execution, the sale deeds were admitted for registration before the Commissioner appointed by the registering officer as defendant No. 3 was ill. It was also deposed by him that the sale deeds were admitted for registration by defendant No. 3 in the house of Surendra Prasad, (defendant No. 1). D.W. 16, who is a Thikedar, deposed that plaintiff No. 2 forcibly evicted two tenants out the suit premises in the year 1986. D.W. 18, who is an Advocate's Clerk of Sant Kumar Karn, Advocate, proved the written statement dated 09.03.1988 filed by defendant No. 3.
14. Defendant No. 2 also produced several documents, which were taken into evidence as exhibits, out of which Ext. A is the Sada agreement for sale dated 28.10.1986 executed by defendant No. 3 in favour of defendants No. 1 and 2; Exts.B series are six registered sale-deeds executed by defendant No. 3 in favour of defendants No. 1 and 2; Exts.C series are agreements for rent between Sheo Shankar Khetan and the tenants; Exts.D series are the rent receipts of the Municipality after sale-deed of defendants No. 1 and 2; Ext.F is the copy of the relevant Register of the Registration Office, Exts.G series are the respective Vakalatnamas; Ext.H is F.I.R. dated 26.12.1986, Ext.J is the written statement dated 26.12.1986 in the criminal case; Ext.M is the certified copy of sale-deed dated 13.05.1986; Ext.N is the written statement of the defendant; Ext.O is the objection filed by defendant No. 3; Ext.P and Exts.Q series arc the attendances filed by the Advocate's Clerk; Ext.R is the plaint of T.S.No. 32/1994; Ext.R/1 is the Return filed by defendant; Ext.S is the Advocate's notice on behalf of defendant No. 1 dated 14.03.1991; Ext. T is the Power of Attorney; Ext.U is a municipal receipt; Ext. V is order dated 08.03.1960 passed in T.S. No. 61 of 1959; Exts. W series are orders of the Magistrates; Ext.X series Page 2942 are the charge-sheets; Ext.Y is the final report dated 25.03.1988; Ext.Z is the postal receipt; Ext.ZA is the statement of defendant No. 3 under Section 164 of the Code of Criminal Procedure in Jehanabad P.S. Case No. 15/1988; Ext.ZB is the F.I.R. regarding kidnapping of defendant No. 3 instituted by defendant No. 4; and Ext.ZC is letter dated 10.08.1985 issued by the Deputy Secretary, finance Department, Government of Bihar, Patna.
15. After considering the pleadings and evidence of the respective parties, the learned trial court decreed the suit on contest with costs by the impugned judgment and decree dated 10.06.1991 after arriving at the following findings on the issues involved in the case:
(i) The unregistered agreement for sale (Bai Beyana) dated 28.10.1986 (Ext.A) said to have been executed by defendant No. 3, is an antedated document prepared by defendant Nos. 1 and 2 after presentation of the sale deed by the plaintiffs for registration on 28.01.1988.
(ii) The legal notice dated 16.01.1988 (Ext.'S') and the Power of Attorney (Ext.T) claimed by the contesting defendants to have been sent to defendant No. 3 are also antedated and the Postal registration receipt (Ext.'Z'), was produced to show that they were sent by registered post earlier, but very cunningly the year of the seal on the said exhibit has been torn and the said papers were not filed by defendants No. 1 and 2 in the court till the close of the plaintiffs' evidence.
(iii) The contesting defendants nowhere mentioned in their pleading that any registered notice was sent to Vijay Kumar Sarraf.
(iv) The contesting defendants fabricated the documents after 28.01.1988 i.e. after kidnapping of Vijay Kumar Sarraf.
(v) Defendant No. 3 was made to shift from one place to another because there was a case against defendants No. 1 and 2 for kidnapping defendant No. 3 and had he been recovered, the purpose of kidnapping would have been frustrated.
(vi) There is nothing to show that defendant No. 3 was ailing, rather he was admittedly in the house of defendant No. 1 at the time of admission of the sale-deeds for registration before the Commissioner appointed by the registering officer, although the said house of defendant No. 1 was situated at a distance of 500 yards from the Registration Office, and hence defendant No. 3 was clearly under the influence of defendant No. 1.
(vii) From the perusal of execution portion of the sale-deeds (Exts.'B' series), it is crystal clear to the naked eye that the amounts and dates were left blank, which were filled up later on in a different pen and writing.
(viii) Deed of Dai Beyana (Ext.A) and six sale-deeds (Ext. B series) of defendants No. 1 and 2 executed by defendant No. 3 were antedated documents induced by threat and coercion to defendant No. 3 and are without consideration.
(ix) Claim of contesting defendants that three tenants were ousted by the plaintiffs is not supported by the persons, who are alleged to have been ousted and hence the execution of Kiraynama and payment of rent on receipts are unilateral acts and documents of defendants No. 1 and 2 for the purpose of creating evidence for the instant suit.
Page 2943
(x) The qualities of the witnesses of the sale-deeds of the plaintiffs are very superior in nature and the said sale-deed having been executed in the court premises, it is quite natural that witnesses of the sale deed had signed the same.
(xi) Defendants claimed that the Advocate-witnesses of the plaintiffs' sale-deed, who had worked in a number of cases of the plaintiffs, cannot be a ground for disbeliving their evidence as they have discharged their professional duties.
(xii) So far question of adequacy of the valuation of the suit raised by defendants No. 1 and 2 on the ground of the alleged earlier agreement between defendant No. 3 and defendants No. 1 & 2 is concerned, it is found that evaluation of the suit property was not inadequate specially when the sale deed, on the basis of which the plaintiffs had filed the suit, was valued at Rs. 49,000/- only and defendant No. 3, who was competent to take the plea of inadequacy of the consideration money, has not come forward to raise the point.
(xiii) Sale-deed of the plaintiffs (Ext.1) is valid, genuine and for consideration and was also without any knowledge about the agreement for sale (Bai Beyana) between defendant No. 3 and defendants No. 1 & 2 as it is found to be antedated and prepared subsequent to the presentation of the plaintiffs' deed for registration on 28.01.1988.
(xiv) The plaintiffs have rightly chosen to file the instant suit for specific performance of contract under the provision of the Specific Relief Act instead of filing a suit under Section 77 of the Registration At.
(xv) The bar of thirty days for challenging the order of refusal by the District Registrar is under the provision of the Registration Act, but since the instant suit has been filed for specific performance of contract the said provision of Limitation Act would not be applicable to the instant suit.
(xvi) The District Registrar rejected the appeal of the plaintiffs only on the basis of the rejoinder of defendants No. 1 and 2 and not of defendant No. 3, who was executant of the sale deed in question, hence it was incumbent upon the authority to hold mandatory enquiry into the matter under the provision of Section 74 of the Indian Registration Act with regard to genuineness of execution of the plaintiffs' sale deed. But instead of holding an enquiry, the District Registrar rejected the appeal only on the re joinder of defendants No. 1 and 2 that the instant suit was pending in this Court.
(xvii) The plaintiffs have proved that they have throughout been and still are ready and willing to perform their part of contract i.e. to pay the balance consideration amount of Rs. 19,000/-, hence defendant No. 3 is liable to admit the execution of the sale-deed of the plaintiffs after receiving the said balance amount from them and the plaintiffs are entitled to a decree of specific performance of contract.
(xviii) Sale-deeds of defendants No. 1 and 2 are not binding on the plaintiffs and are set aside.
(xix) Defendants are restrained from disturbing the possession of the plaintiffs over the suit property.
Page 2944 (xx) Defendants No. 3 and 4 are directed to admit execution of the sale-deeds within two months from the date of judgment on receipt of balance consideration amount of Rs. 19,000/-, failing which, the same will be executed by the process of the court.
(xxi) Plaintiffs are held to be continuing in possession of the suit property and hence no order of delivery of possession of the suit property to the plaintiffs is required.
16. Considering the facts and circumstances of the case as well as the evidence on record and also the arguments raised on behalf of the plaintiff-respondents, the defendant-appellant and the defendant-respondents, it is quite apparent that in the instant first appeal, filed against the above mentioned judgment and decree of the trial court, certain matters are not in dispute between the parties namely;
(i) Defendant No. 3 Vijay Kumar Sarraf was the original owner of the suit property;
(ii) Defendant No. 4 was the mother of defendant No. 3 and was his guardian during his minority when the suit land was transferred to him by his maternal grand-father by registered deed of gift dated 09.11.1956;
(iii) Defendants No. 3 and 4 executed sale-deed dated 18.01.1988 (Ext.1) with respect to the suit properties in favour of the plaintiffs;
(iv) Said sale-deed dated 18.01.1988 was presented for registration before the Sub-Registrar on 28.01.1988 (Ext.4);
(v) No deed of transfer was executed by defendant No. 3 with respect to the suit properties in favour of any one else prior to 28.01.1988; and
(vi) Presently plaintiffs are in possession of the suit premises.
17. On the other hand, there are several matters in dispute between the parties, which are to be considered and decided in this first appeal. They are as follows:
(i) Validity and genuineness of the agreement for sale dated 28.10.1986 (Ext.A) as well as of the sale deeds dated 29.01.1988 and 30.01.1988 (Ext.B series) claimed by defendant Nos. 1 and 2;
(ii) Validity and effect of the sale deed executed by defendants No. 3 and 4 in favour of the plaintiff on 18.01.1988 (Ext.1) and the duty of registering authorities to admit the said sale-deed which was presented on 28.01.1988 (Ext.4) for registration;
(iii) Question of possession on the date of the said sale deeds;
(iv) Legality of the order of the District Registrar dated 02.08.1989 (Ext.9) rejecting the plaintiffs' appeal and the requirement of an order for specific performance of contract.
18. (a) The first question in dispute is with respect to the validity and genuineness of the agreement for sale dated 28.10.1986 (Ext.A) as well as of the sale-deeds dated 29.01.1988 and 30.01.1988 (Ext.B series), all executed by defendant No. 3 in favour of defendants No. 1 and 2. Out of them, alleged deed of agreement dated 28.10.1986 is a Sada document on a non-judicial stamp paper of Rs. 3/-, which was purchased on 06.11.1985. From the pleadings of the defendants, it is quite apparent that they have never claimed that negotiation with defendant No. 3 for the sale of the suit property was going on from the year 1985. No doubt, a deed of agreement for sale can be prepared on a plain sheet of Page 2945 paper also but when such agreement is on stamp paper, the date of its purchase can definitely be considered while deciding the genuineness of the document. The stamp paper was purchased in the name of defendant No. 1 Surendra Prasad, who is a co-sharer of merely 1 anna in the purchased property, but the defendants failed to produce him as a witness in the suit on the ground that he had gone in collusion with the plaintiffs as claimed by defendant No. 2 in his cross-examination as D.W.15. Although the deed of agreement shows that it was purchased by defendant No. 1, but according to the witness of deed (D.W.4) it was defendant No. 2, who brought the stamp paper. Furthermore, the suit was decreed against defendants No. 1 and 2, but the said defendant No. 1 did not even challenge the judgment and decree of the trial court, which are being challenged only by defendant No. 2 in this appeal. Furthermore, there are clear interpolations in the said deed of agreement. The learned court below was quite justified in drawing an adverse inference against defendants No. 1 and 2 from the aforesaid set of facts. From the written statement of the contesting defendants as well as from the depositions of the scribe (D.W.2), witness of the deed (D.W.4), defendant No. 2 (D.W.15) and other witnesses deposing as D.Ws. 14 and 16, it is quite apparent that none of them or any other witness had stated that negotiation for sale was finalised in 1985, due to which the said stamp paper was purchased. The defendants' claim regarding stamp paper was also falsified by D.W.4, who clearly stated that defendant No. 2 brought the stamp although the said stamp paper was bought by defendant No. 1. Hence, they cannot be relied on that point.
(b) Learned court below has considered the aforesaid documentary as well as oral evidence and has rightly come to the conclusion that the deed of agreement was prepared antedated on stamp paper, which was purchased by some one else for some other purpose and only to convert the said stamp paper into a deed of agreement the said person (defendant No. 1) was made one anna co-sharer in the said document although there is no material at all to suggest that defendant No. 1 ever had any concern with defendant No. 2 or was, at any point of time interested in the purchase of the said property. Learned court below has also considered the provisions of Section 54 of the Indian Stamp Act, 1989, which shows that if the stamp is not used, it has to be delivered to the District Registrar within six months of the purchase of the stamps, but here the stamp paper purchased on 06.11.1985 was not returned within the said period of six months, rather it was used much beyond that period on 28.10.1986.
(c) Furthermore Ext.S is said to be a legal notice dated 16.01.1988 sent on behalf of defendants No. 1 and 2 to defendants No. 3 and 4, whereas, Ext. T is said to be the Power of Attorney, which were alleged to have been sent by registered post and registration receipt is Ext. Z. But from Ext. Z it appears that very cunningly the date and year of seal given on that envelope has been torn. Furthermore there was no pleading of the contesting defendant regarding any such notice and the said Exhibits S, T and Z were filed by the said defendant only after the evidence of the plaintiff was closed. Therefore, there is nothing to show that the said notice was actually sent on that date, rather it clearly shows that the defendant-appellant was fabricating antedated documents after 28.01.1988. In the said circumstance, it is quite apparent that the deed of agreement (Ext.A) was antedated and was prepared subsequently only to have a march over the sale-deed of the plaintiffs executed Page 2946 on 18.01.1988 (Ext.1) by defendants No. 3 and 4 in favour of the plaintiffs, which was presented for registration on 28.01.1988 (Ext.4) before the Sub-Registrar.
(d) So far as the genuineness and validity of the sale-deeds dated 29.01.1988 and 30.01.1988 (Exts. B series), said to have been executed by defendant No. 3 in favour of defendants No. 1 and 2 are concerned, they are on stamp papers purchased from private Stamp Vendor at Patna on 21.01.1988 as per the claim of the defendants, but no valid explanation has been given as to why such large number of stamp papers involving huge amount of money were purchased from a private Stamp Vendor at Patna and not from the Treasury at Jehanabad, where the deeds were to be registered and why the sale-deeds were not executed on the said stamp papers immediately after their purchase on 21.01.1988 and why they waited till 29.01.1988 when the plaintiffs' sale-deed was submitted for registration on 28.01.1988. It is quite apparent that antedating was possible on purchase of stamp papers from the private Stamp Vendor but it could not have been possible had the stamp papers been purchased from the Treasury, specially when for about a week nothing was done on the said stamp paper and the alleged sale-deeds of defendant Nos. 1 and 2 (Ext.B series) were placed for registration on 29.01.1988 and 30.01.1988.
(e) Specific case of the plaintiffs is that after submission of the sale-deeds executed by defendant No. 3 in favour of the plaintiffs for registration in the Registry on 28.01.1988 (Ext.4), the said defendant No. 3 was kidnapped and his mother (defendant No. 4) filed a complaint and only after his kidnapping, defendant No. 3 was forced to put his signature on the sale deeds on 29.01.1988 and 30.01.1988 (Ext.B series), and on those dates they were filed for registration. Against the said claim of the plaintiff-respondents, the defendant-appellant has produced two documents, namely, statement of the victim (defendant No. 3) under the provision of Section 164 of the Code of Criminal Procedure (Ext.Z/A), and the order of the Magistrate accepting the final report of the Police on the assumption that it was a civil dispute (Ext.W/3).
(f) From Ext.Z/A, it is quite clear that there is no endorsement or certificate thereon nor any oath was administered on that document nor is there anything to show as to who produced the victim. Furthermore, defendant No. 3 although supported the claim of defendants No. 1 and 2 in his first written statement dated 09.03.1988, but subsequently on 11.09.1990 he filed a fresh written statement, in which he had specifically denied his first written statement and clearly stated that he had never entered into any agreement for sale of the suit land with defendants No. 1 and 2 nor did he execute any sale-deed in their favour till 28.01.1988 and only after his kidnapping on 28.01.1988, he was kept at a secret place and his signatures were forcibly taken under threat, coercion and undue influence by defendants No. 1 and 2 and their criminal associates on a large number of stamp papers and other papers without payment of any consideration amount, but since he was a weak person and did not have courage to resist the said acts of defendants No. 1 and 2 and their criminal associates, who terrorised him to give false Page 2947 statement in the criminal case and also before the Commissioner, who was appointed for getting sale-deeds dated 29.01.1988 and 30.01.1988 registered. In the said circumstances, Ext.Z/A cannot be relied upon. Furthermore so far Ext.W/3 namely the order of the Magistrate is concerned, it is a well-settled principle of law that acquittal or conviction in a criminal case does not affect a civil suit. Reference in this regard may be made to a decision of the Hon'ble Supreme Court in the case of M. Kuer v. President reported in 1968 P.L.J.R.197.
(g) It may be noted in this regard that the sale-deeds executed by defendant No. 3 in favour of defendants No. 1 and 2 (Ext.B series) were produced for registration on 29.01.1988 and 30.01.1988, but the said deeds were admitted for registration on commission by defendant No. 3 in the house of defendant No. 1, hence, the statement of defendant No. 3 under the provision of Section 164 of the Cr.P.C. (Ext.Z/A) that on 28.01.1988 he had gone to Banaras was clearly falsified and it was quite apparent that defendant No. 3, on the said date, was under the influence of defendant Nos. 1 and 2, who did not allow him even to go to the Registry office, which was about 500 yards from there. So far plea of ailment of defendant No. 3 is concerned, apart from the statement of defendant No. 3 in his written statement, it is clearly falsified by the fact that he admitted the sale-deeds for registration from the house of defendant No. 1 and not from his own house where he would have normally remained in case of his ailment. It has further come in evidence that defendant No. 3 was the only child of his mother, namely, the complainant (defendant No. 4) and after the said incident they left Bihar and even their written statements were drafted at Kanpur.
(h) Furthermore, the learned court below has rightly found that from the perusal of the execution portion of the sale-deeds (Exts. B series), it is quite apparent from naked eyes that the amounts and dates in the said sale-deeds were left blank, which were subsequently filled up later on in a different pen and ink. So far depositions of the scribe (D.W.13), the witnesses (D.W.3 and D.W.5) and the identifier of the executant (D.W.5) of the sale deeds are concerned, they have clearly admitted in their evidence that the residence of defendant No. 1 where the execution of the sale-deed was admitted by defendant No. 3 was at a distance of 500 yards from the Registry office. Learned Court below after considering all the evidences has rightly come to the conclusion that no stamp was purchased on 21.01.1988 nor the sale-deeds were scribed and executed on that date, rather it was done after 28.01.1988 by antedating the stamp papers and the deeds.
(i) In the aforesaid circumstances as well as from the materials on record and the pleading of the parties, it is quite apparent that the deed of Baibeyana (Ext.A) as well as the six sale-deeds of defendants No. 1 and 2 (Exts. B series) are antedated, obtained from defendant No. 3 under threat and coercion and the said documents were created by defendants No. 1 and 2 after 28.01.1988 without payment of any consideration as they had full knowledge of plaintiffs' sale-deed which was executed on 18.01.1988 (Ext.1) and was filed for registration on 28.01.1988 (Ext.4) in the Registry office. Hence defendants 1 and 2 acquired no right, title or interest over the Page 2948 suit properties on the basis of the sale deeds Exts. B series.
19. (a) The second question in dispute is with regard to validity and effect of the sale deed executed by defendants No. 3 and 4 in favour of the plaintiff on 18.01.1988 (Ext.1) and the duty of registering authorities to admit the said sale deed, which was presented for registration on 28.01.1988 (Ext.4). It is the specific case of the plaintiff-respondents that in the month of January, 1988, negotiation for sale of the suit property was made by defendant No. 3 with the plaintiffs in presence of Munshi (P.W.2) and the consideration was settled at Rs. 49,000/- and stamp for the sale-deed was purchased by the plaintiffs from Jehanabad Treasury on 12.01.1988 and the sale-deed was scribed by P.W.1 and typed by P.W.3 on 18.01.1988 in the court premises itself and it was executed by defendant No. 3 and his mother (defendant No. 4) in presence of witnesses of the deed, namely, Munshi of executant (P.W.2) and several Advocates (P.Ws.4, 5 and 8) out of whom P.W.8 is now a Judicial Officer and a sum of Rs. 30,000/- was paid to the executant by the plaintiffs to defendant No. 3 in their presence and the balance consideration money of Rs. 19,000/- was to be paid at the time of exchange of equivalents. These facts were consistently stated by the said witnesses in their depositions.
(b) It is an admitted fact that the suit properties belonged to defendant No. 3 but defendant No. 4 also executed the sale-deed only as a precautionary measure because she was guardian of defendant No. 3 when the suit property was gifted to defendant No. 3 by his maternal grandfather by registered deed of gift dated 09.11.1956. Furthermore, the presentation of the said sale-deed for registration on 28.01.1988 is not in dispute and hence there are series of consistent evidence and a strong chain of circumstances, which proved the case of the plaintiff-respondents and there was no reason at all to disbelieve or discard the same. The claim of the defendant-appellant, that the plaintiffs' witnesses were the plaintiffs' previous lawyers and were consumer of liquor of plaintiffs' shop and hence they have deposed falsely, is not supported by any valid material whatsoever and hence such bald statements cannot be relied upon specially against the learned Advocates. Furthermore, it is quite natural that the witnesses of a deed would be somehow connected with the vendor or the vendee. The said evidence have been fully supported by defendant No. 3 in his written statement.
(c) So far the adequacy of the consideration money in the said sale-deed of the plaintiffs is concerned, it is well-settled that an agreement between the parties cannot be rendered nugatory on the ground that the consideration was not adequate and the courts do not entertain the plea of inadequacy of consideration as a ground for refusal to perform the obligations under a contract. Equity requires giving relief of setting aside a transaction improvidently obtained when unfair advantage is taken of a person due to his ignorance and weakness. But here there is no material to show that the plaintiffs had ever tried to take unfair advantage of defendants No. 3 and 4. On the other hand in the instant case, it has been proved that it were defendants No. 1 and 2, who had taken unfair advantage of the weakness of defendant No. 3. Hence, even on the ground of equity, defendant-appellants have got no case at all. Reference in that regard may be made to the case of Vijaya Minerals Pvt. Ltd. v. Bikash Chandra Deb and also to the case of Page 2949 Godhan v. Ram Bilas . Hence, this ground raised by the defendent-appellant also cannot be legally entertained.
(d) The signatures of defendant No. 3 and others on the sale-deed (Ext.4) have also been verified. It has been found that the said sale-deed contains signatures of defendants No. 3 and 4, which is also supported by the statement of defendant No. 3 in his written statement as well as statements of other witnesses of the plaintiffs. In the said circumstances, the sale-deed of the plaintiffs (Ext.1) is valid, effective, genuine and for consideration and is not affected by the alleged deed of agreement (Ext.A) in favour of the defendant-appellant, which has already been held to be antedated and hence it was the duty of the registering authority to allow its registration.
20. The third question in dispute is with regard to possession of the suit land on the date of the sale-deeds in question. It is not in dispute that the plaintiffs are in possession of the suit properties and the question raised by the defendant-appellant is only whether they were in possession at the time of execution of the deeds in question. The sale-deed of the plaintiff-respondents being prior to the sale-deeds of the defendant-appellant has been found to be genuine, legal and valid, whereas, the deeds of the defendant-appellant have already been found to be antedated, illegal and void. Furthermore, the defendant-appellant has absolutely failed to show by any pleading or evidence that on which date he had come in possession and on which date he had been dispossessed by the plaintiff-respondents. Furthermore, the defendant-appellant has failed to show that his sale-deeds we re ever acted upon, whereas, the plaintiff-respondents have been able to show that they are still in possession of the suit property on the basis of their sale-deeds. In the said circumstances, this plea of the defendant-appellant also fails.
21(a) The fourth question in dispute is with respect to legality of the order of the District Registrar rejecting the plaintiffs' appeal and the requirement of an order for specific performance of contract. It is quite apparent that after presenting sale-deed dated 18.01.1988 (Ext.1) of the plaintiff-respondents in the Registry Office on 28.01.1988 (Ext.4), the executant (defendant No. 3) was kidnapped and hence the said sale-deed was not admitted and on the very next date i.e. 29.01.1988, the plaintiffs took step for compulsory registration before the Sub-Registrar, who issued notice to the executant, but when the executant did not turn up, he refused registration and hence the plaintiffs preferred an appeal under Section 72 of the Indian Registration Act before the District Registrar, who rejected the appeal merely on the ground that the matter was pending in the trial court vide Title Suit No. 18 of 1988. The learned court below has specifically found that the said order was passed on a petition said to have been filed by defendant No. 3 and from a perusal of the said petition (Ext. O), it appears that on its last page, there is signature of defendant No. 3, but there is specific claim, of defendant No. 3 himself that the defendant-appellant had obtained signature of defendant No. 3 on blank paper, which was subsequently used by the defendant-appellant.
(b) Under the provision of Section 74 of the Indian Registration Act, it was mandatory for the District Registrar to hold an enquiry into the matter as to whether the document has been executed by its executant or whether requirements of law for the time being in force have been complied with by the person concerned with respect to registration of the document. The learned Page 2950 District Registrar failed to appreciate that he was not to decide the right and title of the parties of the sale-deeds concerned, rather he had to confine himself to the document only, but instead of enquiring into the matter, the District Registrar rejected the appeal only because of the pendency of the title appeal, which, in my view, is not legal and proper.
(c) It has already been found that the deed had been executed by defendant No. 3, who is the admitted owner, and defendant No. 4 in favour of the plaintiffs without any coercion, illegality and fraud and that the documents relied upon by the defendant-appellant were antedated, illegal and void. From the pleadings and evidence, it is clearly found that the plaintiff-respondents have throughout been and are still ready and willing to perform their part of the terms of the deed in question, hence defendant No. 3 is liable to accept the balance consideration money and admit the execution of sale-deed of the plaintiffs dated 18.01.1988 (Ext.1) which has been submitted for registration in Jehanabad Registry Office on 28.01.1988 (Ext.4) and the plaintiff-respondents are entitled to a decree for specific performance of contract. In case of the failure of defendant No. 3 the same has to be done through other processes prescribed in law. Since plaintiff-respondents are already in possession of the suit premises, no order for delivery of possession is required.
22. The position being as mentioned above and no illegality having been made out in the impugned judgment and decree of the learned court below, this appeal is clearly devoid of merit and deserves dismissal which I direct, but without cost.